The Making of Transnational Contract Law
Indiana Journal of Global Legal Studies, Forthcoming
16 Pages Posted: 19 Dec 2007
As a matter of fact, lawyers from all jurisdictions know what contract law is and how it is made. Although not explicable in a definite theory and despite differences regarding the relative weight of legislation compared to judicial lawmaking, this knowledge is entrenched in a common understanding of the strong role of the modern nation state in the administration of justice. In this article I argue that this common sense currently is subject to a fundamental transformation. As globalization has led to a shift in the legal needs of contract law consumers, the demand for legal certainty in cross-border transactions has increased. Section I explores this transition. Section II discusses how traditional concepts of private international law, mainly the law of conflicts and multilateral treaty harmonization, have proven unable to keep pace, allowing private actors to step in and gain a dominant position in providing legal services to international commerce. The resulting privatization of lawmaking leads to concerns regarding the legitimacy of transnational contract law. The new forms of lawmaking that can be observed in the transnational legal arena cannot be realigned with the traditional concepts of legitimacy of the constitutional state, nor is it appropriate to fall back on the even more out-dated concepts of natural or customary law. Rather it is necessary to reconceptualize the ideas of democratic lawmaking under the rule of law in order to adapt them to the reality of transnational lawmaking. In section III, I suggest that the concepts of "rough consensus" and "running code" are potential candidates in this endeavor.
Keywords: Contract Law, Globalization, Private Lawmaking, Legitimacy, Rough Consensus, Running Code
JEL Classification: K12, K33
Suggested Citation: Suggested Citation